보험회사간 상호협정에 관한 법적 규제와 그 문제점

Abstract

Section 125 of Insurance Business Act(IBA) provides that mutual agreements among Insurers are subject to the approval of national financial authority(Financial Services Commission) with a prior consultation of Fair Trade Commission. Section 58 of Antimonopoly Regulation and Fair Trade Act(AMA) also provides that business acts based upon statutory basis are immune from any kind of Antitrust enforcement, and it is understood that this policy is similar to the state action doctrine of United States. Herein Korean literature and courts construe that concerted acts of insurers based upon such mutual agreements as provided by §125 of IBA enjoy broad immunity from antitrust enforcement, especially form the collusion prohibition. Due to repeated revison of AMA, every market and every business activities in Korea are subject to the general enforcement of competition law and policy, and insurance industry is no exception. In these context, both provisions of IBA and AMA aforesaid are criticized that they are allowing too much freedom and are not providing any substantial limitations for the proposed immunity. When we consider the relevant developments in major jurisdictions of the world, especially those of US, Germany and Japan, provisions aforenamed are outdated and are in need of general overhaul both in legislation and enforcement. Concerning Section 125 of IBA, the author proposes a limited form of immunity, for example limiting the types of insurance to which concerted acts are indispensable, and requiring more rigid qualifications for the approval of Financial Services Commission. The author also recommends abolishment of Par. II, Section 125 which mandate FNS to order insurers to conclude a new agreement and also to coerce an outsider to enter into the mutual agreement. Meanwhile the wording of 'business of inurers' in §125 of IBA should be construed that it is in line with essential aspect of insurance, the pooling and transfer of risks.